§ 465. “Full Faith and Credit.”

Section 118 contains a constitutional declaration in favour of inter-state official and judicial reciprocity, which the Federal Parliament and the States may assist to effectuate, but which they cannot prejudice or render nugatory; the Federal Parliament being enabled to carry it into execution by sec. 51—xxiv. and xxv., and the States in the exercise of their reserved powers. Subjects of the Queen, residents in one State, may have rights of property and personal privileges which they wish to assert in

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other States where they do not reside. They may desire to take proceedings in the courts of another State, in order to assert their rights and privileges and to protect their interests. In such proceedings it may be necessary to prove the statutes, records, and judicial proceedings of their own State, or to give evidence of muniments of title existing in their own State. By the rules of international and inter-state comity, as well as at common law, there are certain recognized methods of proof and modes of enforcing such rights and privileges. These rules, however, may be altered or abolished by State legislation. It is conceivable that in times of antagonism and contention between States, laws might be passed in one State intended to defeat or delay the residents of another State in the prosecution of legal rights and remedies against residents in that State. This policy, once resorted to, would lead to reprisals and retaliations, resulting in infinite mischief and unwarrantable denial of right. The Constitution has interposed and converted the rule of comity into a rule of law, in order to promote uniformity of regulation in such inter-state proceedings as well as to prevent the possibility of resort to a narrow-minded unfraternal policy.

AMERICAN LEGISLATION.—In pursuance of power conferred on it by a similar section in the Constitution, the Congress of the United States, in 1790, passed a law which declared that the Acts of the legislatures of the several States should be authenticated by the seals of their respective States, and that the records and judicial proceedings of the courts of any State should be proved or admitted in any other court within the United States by the attestation of the clerk and the seal of the court annexed, together with a certificate of the judge that the said attestation was in due form; and that records so authenticated should have the same faith and credit given to them in every court within the United States as they had in the courts of that State. (U.S. Stat. at Large i. 122; Rev. Stat. 2nd ed. §§ 905–6; Hanley v. Donoghue, 116 U.S. 1; Cole v. Cunningham, 133 U.S. 107; cited Rorer, Inter-State Law, p. 154.)

By a subsequent Act of Congress, passed in 1804, similar provisions as to faith and credit were applied to all records and exemplications of office books kept in any public office of any State, not belonging to a court. (U.S. Stat. at Large ii. 298; Rev. Stat. 2nd ed. § 906; Rorer, Inter-State Law, p. 155.)

APPLICATION TO STATE COURTS.—“The foregoing constitutional and statutory provisions of the United States apply only to the courts of the States and Territories of the United States. They have no reference whatever to the courts, records, documents, or acts of the United States as evidence in the State courts, or to those of the State courts as evidence in the National courts; in these cases the ordinary certificate of the clerk and seal of the court, in such manner or form as renders them admissible in the courts of the same State, or in the Federal courts, as the case may be, renders these documents, records, and acts mutually admissible as between the State and Federal courts, when otherwise proper evidence. But notwithstanding those National provisions are not intended to apply to the United States courts, yet the records of those courts are admissible in other courts, though certified in accordance with said act of Congress. The fact that such authentication more than fulfils the requirement of the law as to admissibility will not be ground of exclusion.” (Rorer on Inter-State Law, p. 156.)

FEDERAL COURTS AND STATE COURTS.—“The State and National courts, though emanations of different sovereignties, are in no wise foreign tribunals to each other, nor are the National courts of one circuit or district such in reference to those of other circuits or districts, but are domestic tribunals, whose seals are recognized as matter of course. But such courts, both National and State, are courts of different sovereignties, and the National Courts are only required to give judgments of State courts such authority as they are entitled to in the courts of the State wherein they are rendered.” (Rorer on Inter-State Law, p. 156.)

PROOF OF STATUTES.—“The certificate and seal of State of the genuineness of statute laws need no other proof of their authenticity, or of the official character of the person certifying as Secretary of State, and if there be any interlineations they are presumed to have been made rightfully; and so it is settled that State laws need not be proved in the courts of the United States.” (Rorer on Inter-State Law, p. 159.)

GENERAL PRINCIPLES.—“The full faith and credit to which the public acts, records, and proceedings are entitled in other States is the same faith and credit to which they

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are entitled in the State whose acts, records, and judicial proceedings they are. (Armstrong v. Carson, 2 Dall. 302.) When, therefore, suit is brought in one State upon a judgment rendered by a court of another State, and it appears that by the law of the last-mentioned State it is conclusive upon the defendant, it must be held equally conclusive in the court in which suit upon it is brought. (Mills v. Duryee, 7 Cranch 481.) Whatever pleas would be good to it in the State where it was pronounced, and none others, might be pleaded to it in any other court within the United States. (Hampton v. McConnell, 3 Wheat. 234; Green v. Van Buskirk, 7 Wall. 139.) Judgments in one State when proved in another differ from judgments of another country in this alone, that they are not impeachable for fraud nor open to question upon the merits. (Hanley v. Donoghue, 116 U.S. 1.) But the judgment can have no greater or other force abroad than at home, and therefore it is always competent to show that it is invalid for want of jurisdiction in the court rendering it. (Harris v. Hardeman, 14 How. 334.) To preclude inquiry into it in another State, the judgment must not only be rendered by a court having jurisdiction of the subject-matter and the parties, but, if the defendant does not appear at the trial, it must be responsive to the pleadings. (Reynolds v. Stockton, 140 U.S. 254.) So anything that goes in release or discharge of the judgment may be shown. (McElmoyle v. Cohen, 13 Pet. 312; D'Arcy v. Ketchum, 11 How. 165.) And the Statute of Limitations of the State where the suit is brought will be available, if the case comes within it. But it is not competent for any State to pass an act of limitations which would, in effect, nullify judgments rendered in other States, and allow no remedy upon them whatever. Reasonable opportunity to enforce a demand must always be afforded.” (Cooley's Principles of Const. Law, p. 203.)

“Constructive service of process by publication or attachment of property is sufficient to enable the courts of a State to subject property within it to their jurisdiction in such cases as the statutes of the States may provide therefor; but such a service cannot be the foundation of a personal judgment. Process from the tribunals of one State cannot run into another State and summon parties there domiciled to leave its territory and respond to proceedings against them. Publication of process or notice within the State where the tribunal sits cannot create any greater obligation upon the non-resident to appear. Process sent to him out of the State, and process published within it, are equally unavailable in proceedings to establish his personal liability. But in respect to the res, a judgment in rem, rendered with competent jurisdiction, is conclusive everywhere.” (Id. pp. 204–5.)

“The Act of Congress declaring the effect to be given in any court within the United States to the records and judicial proceedings of the several States does not require that they shall have any greater force and efficacy in other courts than in the courts of the States from which they are taken, but only such faith and credit as by law or usage they have there. (Robertson v. Pickrell, 109 U.S. 608.)” (Rorer on Inter-State Law, p. 155.)

“This section of the Constitution does not prevent an inquiry into the jurisdiction of the court in which a judgment is rendered, to pronounce the judgment, nor into the right of the State to exercise authority over the parties or the subject-matter, nor whether the judgment is founded in and impeachable for a manifest fraud. The Constitution did not mean to confer any new power on the States, but simply to regulate the effect of their acknowledged jurisdiction over persons and things within their territory. It did not make the judgments of the States domestic judgments to all intents and purposes, but only gave a general validity, faith and credit to them as evidence. No execution can be issued upon such judgments without a new suit in the tribunals of other States, and they enjoy not the right of priority or privilege or lien which they have in the State where they are pronounced, but that only which the ‘lex fori’ gives to them by its own laws, in their character of foreign judgments. (McElmoyle v. Cohen, 13 Pet. 312; D'Arcy v. Ketchum, 11 How. 165; Thompson v. Whitman, 18 Wall. 457; Pennoyer v. Neff, 95 U.S. 714; Wisconsin v. Pelican Ins. Co., 127 U.S. 265; Christmas v. Russell, 5 Wall. 290; Story, Constitution, § 1303 et seq., and Story, Conflict of Law, § 609.) And other judicial proceedings can rest on no higher ground. (Cole v. Cunningham, 133 U.S. 107, 112.)” (Id. p. 152.)

The constitutional provision does not prevent enquiry into the jurisdiction of the court in which the judgment was rendered over subject matter and parties, or into the facts necessary to give such jurisdiction. (Thormann v. Frame, 176 U.S. 350.)

FEDERAL POWER.—The cases cited merely illustrate the law of the United States, as determined by the Constitution and by Federal legislation thereunder. It must be remembered that the Parliament of the Commonwealth has large powers of legislation under sec. 51—xxiv. and xxv. It can pass laws providing for the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of

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the courts of the States. By the exercise of that power the Federal Parliament may revolutionize the principles of service of process, referred to in the extract from Cooley (supra). The Federal Parliament can likewise pass laws providing for the recognition, throughout the Commonwealth, of the laws, the public acts and records, and the judicial proceedings of the States. (As to legislation which may be passed in the exercise of these powers, see Notes on sec. 51—xxiv. and xxv.)

Protection of States from invasion and violence.

119. The Commonwealth shall protect every State against invasion466 and, on the application of the Executive Government of the State, against domestic violence467.

UNITED STATES.—The United States … shall protect [every State] against invasion; and, on application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence.—Art. IV., sec. 4.

HISTORICAL NOTE.—In the Commonwealth Bill of 1891, and in the Adelaide draft of 1897, this clause appeared verbatim. At the Melbourne session, Mr. Gordon moved to substitute “attack” for “invasion,” to make it clear that a naval attack was included. This was negatived. (Conv. Deb., Melb., pp. 691–2.)